58 COMPETITION LAW IN TOURISM and clauses exempting responsibility. Besides, in their responses to the inquiry conducted by the Commission and the ten NCAs, the hotels put forward various allegations against OTAs, such as excessive commission rates, unjustified downgrading in OTAs search results and other unfair or misleading practices197. It is also noteworthy that the ECN decided to keep the hotel booking sector under review198. 5.3. Outlook The Commission is currently conducting several investigations in the tourism sector, one of themconcerning the possible hotel price discrimination based on customer’s location, stemming from the agreements between leading European tour operators and hotels199. The Commission is also looking at the agreements between the two leading providers of computerised reservation systems on the one hand, and airlines and travel agents, on the other hand. The EU antitrust watchdog is concerned that possible restrictions in the airline ticket distribution market may hinder innovation and increase the ticket prices for passengers200.These developments demonstrate that next to the “traditional” tourism actors, the digital service providers in the tourism sector, are under heightened scrutiny based on Article 101 TFEU. Since the relevant legislation and soft-law is set to evolve, undertakings should pay a particular attention to ongoing review of the vertical201 and two horizontal block exception regulations and accompanying guidelines. An issue at least in theory remains whether airlines or hotel operators selling large blocks of seats and rooms at heavily discounted prices can request tour operators to process them into holiday packages rather than reselling them individually. This seems to be a priori contrary to the VBER but might be justified as an ancillary restraint or under Article 101(3) TFEU. Finally, it should be noted that the VBER is currently under review, notably to make it suitable for the digital age202. As part of the review of the VBER, the 197 Ibid. p. 23. 198 European Commission: Outcome of the meeting of ECN DGs on 17.02.2017, https://ec.europa.eu/ competition/antitrust/ECN_meeting_outcome_17022017.pdf. 199 EC Press-Release of 02.02.2017; Antitrust: Commission opens three investigations into suspected anticompetitive practices in e-commerce; https://ec.europa.eu/commission/presscorner/detail/en/IP_17_201. 200 EC Press-Release of 23.11.2018; Antitrust: Commission opens investigation into airline ticket distribution services; https://europa.eu/rapid/press-release_IP-18-6538_en.htm. 201 See: European Commission, Review of the Vertical Block Exemption Regulation, available at: https://ec. europa.eu/competition/consultations/2018_vber/index_en.html. 202 See: European Commission, Review of the Vertical Block Exemption Regulation, available at: https://ec. europa.eu/competition/consultations/2018_vber/index_en.html.
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